face an offer to perform the covenants of said instrument of November 7th; that the same was not made in good faith; and that it was not executed by appellants in accordance with the provisions of said instrument of November 7th; and in our opinion these findings were correct. Moreover, after this alleged offer, the appellants continued the prosecution of said petitions in the probate court as before. On December 12, 1891, respondent filed a petition for family allowance in said probate court, and the appellant Hellings filed a written opposition thereto, in which she averred, among other things, that respondent was not the wife, and her children not the children, of said Solomon Heydenfeldt, deceased. On January 30, 1892, an amendment was made to appellant's petition, in which the averments of the original petition were adopted and renewed. On January 21, 1892, appellants resisted respondent's motion to dismiss the contest in the probate court, and in various ways appellants prosecuted said contest to and after the commencement of this action. This contest in the probate court was carried on by appellants for more than a year after the commencement of this present action.

The court found that respondent, owing to her mental and physical condition, was not competent to make the said contract; but the record presents some embarrassing questions as to the rulings of the court about the admissibility of evidence on the issue of the competency of respondent, which, under our views of the case, we do not deem it necessary to determine. The court also found that there was no authority for signing the name of the infant, Ine O. Heydenfeldt, to the said contract, and that the modification of the contract made by the respondent was not accepted by the appellants, and made a number of other findings, each of which, if correct, separately and independently supports the judgment. But that we will also pass over.

The complaint does not go upon the theory that appellants are entitled to the actual damages suffered by respondent's repudiation of the contract such dam

ages as are ordinarily recoverable upon the breach of an executory contract. The action, though not technically such, is in the nature of an action for specific performance; that is, appellants sought to compel respondent to pay the full amounts of the exact sums of money specified in the contract, with legal interest from its date. They contend that the contract was "an obligation to pay money only," and that the damage is "the amount due by the terms of the obligation, with interest thereon," as expressed in section 3302 of the Civil Code. No damage is alleged or proven, but judgment is sought for the specific amount of money mentioned in the contract, just as though the action were upon a promissory note. This is undoubtedly the rule when the consideration has passed to the obligor and he has given an absolute promise to pay. But when the consideration has not passed, when the contract is executory on both sides, when the promise of the obligor is contingent upon the performance of covenants by the other party, then the amount named to be paid is not by any means the absolute measure of damage for a breach of the contract. In such a case the amount named to be paid is not the measure of damage, unless the promisee has done the things required of him to be done, or has made a bona fide and valid offer and tender thereof, so as to pass the consideration of the promisor. If A promises to deliver to B within a certain time a certain number of tons of wheat, and B promises to pay to A upon such delivery ten thousand dollars, but afterwards notifies A that he will not comply with his contract, A may consider the contract broken and sue B for the actual damage, if any such he has suffered, and in such case the measure of damage would be the difference between the value of the wheat at certain different dates; or he may elect to consider the wheat as the property of B and take steps to pass him the title, in which event he may recover the whole amounts to be paid. (3 Parsons on Contracts, 223, et seq.) But he cannot keep the wheat and also recover the purchase price. In most of the

reported cases touching this question the subject matter of the contract has been property-real or personal; but the same rule obtains when the covenants of one of the parties to the contract is for personal acts or omissions. In the case at bar the appellants, after having received notice from respondent that she repudiated the contract, might have elected to recover of her the actual damage -if any such could be shown-which they suffered by reason of her withdrawing from the contract. But they could not recover the whole of the specific amounts of money stipulated in the original contingent promise of respondent while retaining the consideration for which that promise was made that is, while refusing to carry out their covenants for personal acts and omissions provided for in the contract and continuing to prosecute their said petitions in the probate court and their charges against the respondent. That would be like the conduct of a vendor who sought to both keep the goods and recover the price.

Appellants contend that it was enough to offer to perform, and that, if their offer was not good, they were excused from making any offer by respondent's notice that she would not perform. Their complaint, however, rests upon an alleged offer and not upon an excuse for not making an offer. But it is clear that in this case appellants could not recover from respondent the specific amounts of money named (in principle, the purchase price) without performing their covenants, or making a bona fide offer and tender of performance, and remaining in a position to keep that offer and tender good. This they did not do. They did not perform any of their covenants; and their alleged tender of performance, in addition to defects herein before noticed, was evidently not bona fide, and was not kept good. By continuing to prosecute the proceedings in the probate court they themselves broke the contract. They put it out of their power to perform their covenants, for they continued to do the things which those covenants restrained them from doing. They were like the vendor of wheat

who, while consuming the wheat himself, is suing the vendee for its price. For these considerations, without determining other questions in the case, we think that the judgment should be affirmed.

Judgment and order appealed from affirmed.

HENSHAW, J., and TEMPLE, J., concurred.

Hearing in Bank denied.

[No. 15243. Department Two.-June 29, 1895.]

MARGARET J. MORFFEW ET AL., APPELLANTS, v. SAN FRANCISCO AND SAN RAFAEL RAILROAD COMPANY ET AL., RESPONDENTS.

CONSTRUCTION OF WILL-POWER OF SALE-TRUST.-Where a testator devised all his property to his wife in trust for his children, and, without appointing any executor, in direct terms provided that if a majority of his executors deem it desirable to sell part of the unproductive estate granted by the will before the final distribution of the same, the proceeds were to be divided among the surviving heirs, the power of sale of the unproductive estate must be considered as given to the widow as trustee, and not as executrix, during her life and ability to act. ID.-ESTATES OF DECEASED PERSONS-EFFECT OF DISTRIBUTION TO TRUSTEE-PROBATE JURISDICTION.-The lands distributed after administration into the hands of the widow, as trustee under the will, ceased to be a part of the estate in the course of administration; and, prior to the enactment of sections 1699 to 1703 of the Code of Civil Procedure, the probate court, and its successor the superior court, in the exercise of probate jurisdiction, had no further control of the same; and the circumstance that at a future time there was to be a division of the property among the beneficiaries of the trust did not affect the rule; and the only power to regulate and direct the administration of the trust lay with the court possessed of general equity jurisdiction.

ID. POWER OF SALE BY TRUSTEE-CONFIRMATION BY COURT.-After the decree of distribution to the widow as trustee no confirmation of a sale under the power held by her as trustee was required or authorized by law.

ID. ESTATE OF TRUSTEE.-The trustee takes an estate adequate to the execution of the trust, no more and no less.

ID. DISCRETIONARY POWER OF SALE-ENLARGEMENT OF LIFE ESTATE -NAKED POWER TO SELL REMAINDER.-Where there is no trust for the purpose of sale and the power of sale of the unproductive lands is by the terms of the will left discretionary, a life estate, vested in the trustee as an individual, is not enlarged to a fee by the power of sale, and

the power of sale granted to the trustee to sell the remainder after the termination of her life estate is a mere naked power to sell such estate, not coupled with any interest in the fee.

ID. EXECUTION OF POWER-CONVEYANCE IN NAME OF DONEE.-Where the donee of a power owns an interest in the land granted the fact that the conveyance is made only in the individual name of the donee and makes no reference to the power is not conclusive against the execution of the power; but, where it appears, in view of the circumstances under which the deed was made, including the situation of the subject of the instrument, that the intent of the donee of the power was to transfer the whole estate, and to exercise the power necessary for that purpose, the instrument will be held to work both by the interest and by the power and to pass the entirety of the estate.

APPEAL from a judgment of the Superior Court of Marin County and from an order denying a new trial.

The facts are stated in the opinion.

Mullany, Grant & Cushing, for Appellants.

A mere discretionary power to sell does not create a trust for the purpose of sale. (Civ. Code, sec. 857; Cooke v. Platt, 98 N. Y. 35, 38; Wood v. Nesbitt, 62 Hun, 449.) A power of sale by an executor must be confirmed by the court. (Estate of Delaney, 49 Cal. 76; In re Williams, 92 Cal. 183.) The deed having been executed in the individual capacity of Susan Crooks, and without reference to the will, will be applied to her interest, and not to the power. (4 Kent's Commentaries, 334; Devlin on Deeds, sec. 423; Terry v. Rodahan, 79 Ga. 285; 11 Am. St. Rep. 420; Owen v. Switzer, 51 Mo. 322; Phillips v. Brown, 16 R. I. 279; Pease v. Pilot Knob etc. Co., 49 Mo. 124; White v. Hicks, 33 N. Y. 383; Bell v. Twilight, 22 N. H. 500, 517; Blagge v. Miles, 1 Story, 427; Wetherill v. Wetherill, 18 Pa. St. 265; Keefer v. Schwartz, 47 Pa. St. 503; Roake v. Denn, 4 Bligh, N. S., 1, 17, 18; Brooks v. Terry, 14 N. Y. Supp. 238; Hickey v. Peterson, 9 N. Y. Supp. 917; Meagher v. Thompson, 49 Cal. 189; Cotting v. De Sartiges, 17 R. I. 668; Mutual Life Ins. Co. v. Shipman, 119 N. Y. 325; Payne v. Johnson, 95 Ky. 175; Tiedeman on Real Property, sec. 569.) The power of sale was a mere naked power. (1 Sugden on Powers, 8th ed., 112; 2 Jarman on Wills, Bigelow's